Friday, October 30, 2009

The Libertarian Objection Again

By Mike Dorf

In response to my FindLaw column and accompanying blog entry last week on the libertarian objection to the proposed individual mandate in various pending health care bills, I received a number of emails and came across various commentaries on the web taking issue with my view. Here I want to respond to a couple of what I think are clearly misguided objections and then unpack one that, in my view, has more bite.

1) Some critics accused me of ignoring what they regard as the best objection to the individual mandate--that there is no power in Congress to require it. (E.g., here.) Yet I quite clearly say at the beginning of the column that there are two primary objections to the individual mandate, and the second one contends "that the federal government lacks the authority under the Constitution to impose the mandate or to penalize those who do not comply." I then say that I will object this second objection--an objection that constitutional lawyers would routinely call a "federalism objection"--in a followup column. So, stay tuned on that front.

2) Some other critics say that I haven't rebutted the libertarian argument because I take the existing level of government involvement in the economy as my baseline but that baseline is already way too high. Yet I did not claim to be responding to all libertarians who object to anything more than a Nozickian watchman state. I have quite clearly styled my interventions here as a response to the libertarian objections that have been most clearly directed at the individual mandate as such. And those objections--coming from the Cato Institute (the leading American libertarian thinktank) and leading Republican Senators--make the argument that the individual mandate is, in a key respect, unprecedented. In other words, their argument takes the existing level of government as the baseline, and I was responding to that. If libertarians object to the proposed individual mandate on the same grounds that they object to Medicare, Social Security, Medicaid, vaccination, jury duty, and other government activities--including most taxation--they should say so loudly and clearly, rather than muddy the issue by saying that the proposed individual mandate would be unprecedented.

3) But now onto what I find to be the most interesting libertarian objection, which has not been posed specifically as an objection to my defense of the individual mandate but is nonetheless salient. Some libertarians object that what makes the individual mandate different from prior government mandates is that it is a mandate to engage with a private firm. The obligations to serve jury duty, to pay taxes, to register for the draft, and to educate one's children involve bilateral relations between the citizen and the government. By contrast, the individual mandate would require people to buy health insurance from third parties--either for-profit or non-profit organizations. Thus, even some on the left, most notably TruthDig's Robert Scheer (speaking on KCRW's Left, Right & Center), have argued that this is unfair.

The core question I would pose for people like Scheer is why this is any worse than taxing people for other privately provided goods and services they don't use. The federal government uses my tax money to subsidize private animal agriculture, even though I'm not eating any of the resulting animal products. The libertarians have complained that the individual mandate is a tax on "existence," but that's just a formality. The U.S. Constitution expressly approves of head taxes (so long as apportioned according to population) and they were used in the nineteenth century. Moroever, as I explained in my column, the excise tax in the Baucus bill is triggered by income relative to the poverty line, and so this could just as easily be thought of as an income tax.

Scheer's real objection should be that the various proposals floating around in Congress operate as regressive taxes: the only people who will pay them are those who don't have employer-based or other health insurance and can't afford to purchase it privately. But that's an egalitarian objection to the stinginess of the proposed subsidies, not a libertarian objection to the mandate.

Scheer also said (during last week's LRC episode) that he would not object to the individual mandate if it were coupled with a robust public option--presumably because then people would not be told by the government to do business with a third party. That does not appear to be the view of other libertarians on this issue, many of whom would be no happier (and probably less happy) if there were also a public option. But if we take Scheer's view as the starting point, then I think we can connect it to a rather widely shared position: namely that it is wrong for the government to take from A to give to B. That impulse underlies the public opposition to the sort of taking for private redevelopment that the Supreme Court upheld in Kelo.

I would still argue that the libertarian objection to the individual mandate is misguided, but by seeing it as fundamentally about a perceived abuse of government power to serve private ends, we can at least render it coherent.

17 comments:

As you say, you're not giving a dialectic on the philosophy of libertarianism. Your argument is made in the context of our laws.

When faced with Robert Scheer's argument, you quickly retreat toward philosophy and ask if an insurance mandate is "any worse than taxing people for other privately provided goods and services they don't use."

It isn't a matter of "better" or "worse." Even without getting into the federalism issue, it is a matter of legal dissimilarity. A tax on a transaction is different from requiring someone to enter into a transaction. It is absurd to say there is no difference between the government taxing on transactions, whether entered into or not. You say you're not taking on the Nozickian argument, but then raise the specter that someone is objecting to the notion of taxing transactions.

I raised a question about the tax issue on your previous blog and your current answer is perplexing. To rebut the "tax on existence" idea, you point out that capitation taxes are constitutional. But then you insist it is an excise tax that should be thought of as income tax (thereby falling under the graces of the 16th Amendment.)

So it is an "excise tax" on existence (a mere formality), not directly related to income, but should be treated as an income tax, because that is a direct tax like a capitation tax and there is a tangential relationship with income.

If your argument is couched solely in whether a health mandate is subjectively 'better or worse' than some other act of government, it's fairly easy to prevail against the libertarian argument. We can ignore distinctions of law as mere formality, given the often indistinguishable impact on the lives of libertarians.

If you're arguing about the similarity of a health mandate with prevailing federal law, no good parallel has been offered.

In response to both of these comments, I want to reiterate that I do not regard myself as answering all libertarian objections. So with respect to Anonymous Blogger's question, of course I think that the general libertarian argument for less rather than more government is coherent. Undoubtedly there is a point beyond which I would say that the govt is too large and intrusive. Various libertarians might disagree with me (and with each other) about where that point is, of course.

With respect to Joe's points:My column DID give examples of affirmative obligations, including jury duty, duties to vaccinate, to perform military service if called upon, and to educate one's children. Joe refers to "prevailing federal law," but I made clear in the column and again in this post that for purposes of addressing a libertarian rather than a federalism objection, state law precedents are relevant.

And, with respect, I do think it is a matter of better or worse. At most the libertarians have shown that there is a categorical distinction between taxes on activities and taxes on existence. But to explain why that categorical distinction is relevant, one needs some further account of why it is necessarily worse for government to tax existence than to tax activities.

I think in your Findlaw piece, you mentioned that jury duty falls under a federal law, which doesn't play to the federalism question; it's a directly applicable comparison.

I could be missing something, but jury duty doesn't even emanate from an enumerated power, does it? We all agree the point is to satisfy provisions in the BoR. But even so, it's hardly obvious that compelled duty is constitutionally allowed.

With insurance mandates, there is a power (commerce), and it's merely a question of whether the authority extends that far (that same debate traces all the way back to Hamilton and Jefferson).

Where is the equivalent enumerated authority for jury duty? The necessary and proper clause only attends to powers granted. And the 14th only allows Congress to enforce rules against state infringements, right?

I guess what I'm saying is that if I'm right (never a sure thing :) ), in a lot of ways, insurance mandates are less controversial, from a structural standpoint.

Since Article III mentions that crimes must be tried by jury, I suppose this has a natural relation to compelled jury duty. But not any more than regulating commerce would have to compelled behavior, if it is indeed a valid area for Congressional action.

Art. III specifically authorizes Congress to create federal trial courts and, as Eric notes, requires that they hold jury trials. The Sixth Amendment repeats the jury trial right, and the Seventh Amendment extends it to civil cases at law where more than $20 is at stake. Art. I, Sec. 8, after listing various powers of Congress, provides Congress with the power "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." Thus, Congress clearly has the enumerated power to compel jury service. The only issue would be whether there is some rights-based objection, and as I have explained, there is no clear textual ground for one. The longstanding acceptance of jury duty would undercut an argument for an unenumerated right to resist jury duty.

"Reserved to the States" from the tenth covers state actions like vaccines and education. Jacobson v Mass. (referenced from your first article) of course covers a law enacted under use of police power that is reserved to states, and also even says "They are matters that do not ordinarily concern the national government."

The reason a tax on an activity is worse than a tax on existence is that the former is expressly permitted (assuming the activity is economic), while the latter is expressly forbidden unless properly apportioned. "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken." is only overridden in the case of income taxes by a later amendment, and is most certainly a relevant distinction. Philosophically, the argument against such a tax is that it feels wrong to be born guilty.

Another issue you had trouble understanding before was the difference between being told you cannot leave your house and being told you must remain in your house. If I am told not to leave, but you find me outside, you cannot prosecute me unless you witnessed the crime (leaving the house). If I am told to remain in the house, my existence outside of the house is a crime regardless of how I got there. To understand why this could matter, I could be taken against my will (kidnapped perhaps) and be guilty in one case and innocent in the other.

I read both of your post, one on find law and one on hear, and I respectfully disagree with both on them. First, we should no assume that individuals not buying health insurance impose a burden on people who do. If they have the money, the can pay out of pocket. It is important to differentiate between the two. Most people who don't have health insurance can't afford it. How is mandating something that one can't afford solving something? Moreover, I believe the government should exhaust other options before doing something constitutionally questionable.